...“So if we have 100 years of war,” as there were between France and England in the 14th – 15th centuries, Judge Hogan asked, “can these same detainees be held that whole time?”
“Yes, your honor,” said Wiltsie. “We could hold them for 100 years if the conflict lasts for 100 years.”
This exchange, highlighting the absurdity of the government’s position, was articulated during a July 11 hearing in al-Bihani v. Trump, a mass habeas corpus petition brought on behalf of eleven Guantanamo detainees. The government’s position stretches its interpretation of the laws of war to an illogical extreme.
Indeed, only provisions of the Geneva Conventions that apply to international armed conflict between states provide a legal basis for detention. Drafted in the wake of the World Wars in the 20th Century, the Conventions’ drafters certainly were not contemplating the hundred years’ war between kingdoms. There is no explicit authorization of detention in the Convention’s rules governing non-international armed conflict, between a state and a non-state armed group. And while the U.S. government has claimed that the rules of international armed conflict apply to what it has termed its global conflict against the non-state armed groups al Qaeda, the Taliban and “associated forces”, there comes a time when that analogy gets stretched too far.
As Center for Constitutional Rights Legal Director Baher Azmy, representing the detainees, told Judge Hogan on Wednesday: “there must be some limits.” ...